The Shadow Procedure Rises

Today, Prof. I. Govaere kindly invited me to give a Jean Monnet lecture at the University of Ghent.

The subject was “Public and Private Enforcement of EU Competition Law”. My slides can be found below.

The main point of my presentation was the following: a textual reading of Regulation 1/2003 suggests the existence of a single procedural framework for competition enforcement.

However, my impression is that altogether, several recent legal innovations are giving rise to a “shadow enforcement procedure“.

Under this procedure, the Commission can achieve more in terms of remedial outcomes, with less in terms of evidence.

And if, up to this point, the Commission has (wisely) not yet exploited the full potential of this procedure, it may one day be able to extort even more intrusive remedies from parties without ever having to prove an infringement of Article 101 and/or 102 TFEU. A bleak prediction indeed.

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Very interesting topic Nicolas! I went quickly through your 80 slides and they look really excellent (one minor point is that you might have overlooked the water management case of a few months ago: the cartel settlements so far are six).

I agree with you that the Commission is trying to use atypical procedures to obtain their goals, but how to blame it, its resources are scarce and enforcement priorities are multiplying. Most NCAs do that already, you can see committments even in cartel cases in some Member States (!).

The EC offers out clients quicker procedures and better outcomes in exchange of a relaxed evidentiary standard. It becomes more challenging the strategy to adopt by us lawyers for our clients: follow the Commission or fight through the end?

Great presentation, self explanatory. Good to see so clearly stated the core and raising defect of this legislation: punishing without clear rules or without evidence of infringement (companies may run for the commitments, but these are still a manner of punishing). And don’t think that only Google raises “novel issues”: in so many occasions there is so little guidance on matters that are daily under our nose (verticals, dominance etc).
As for the “private enforcement”, it does seem odd to wonder why a person does not start a lengthy and complicated litigation when the result would be to recover “actual damages”. That a consumer may prove it paid x euros more for y packs of detergent used in the past z years is an illusion. As is the likelihood that the manufacturer’s distributor would start a litigation against the manufacturer to claim it paid x euros more per package